A ‘perfect storm’ of factors is undermining the quality of criminal defence lawyers, according to a new report by the charity Transform Justice. In his foreword to the report published on the Justice Gap, Jago Russell, the chief executive of Fair Trials, commented that our criminal justice system was ‘fast descending into a source of national shame’.

The report’s authors, Penelope Gibbs and Fionnuala Ratcliffe, point to ever higher ‘systemic barriers to achieving good advice and representation’ throughout the criminal justice system. They found that whilst defendants appreciated proactive and regular communication with their lawyer, their ability to choose someone with these skills was severely limited. One focus group participant said that those in police custody ‘might have a choice of which solicitor you pick off a list, but it’s a blind choice. You’ve no information to understand it.’

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These kinds of information deserts have led to ‘indications that trust in defence practitioners may be ebbing away’ which is, Transform Justice argues, ‘in no one’s interest’. A defence lawyer even admitted: ‘In truth the system is just allocating people to you at every single stage… your choice isn’t worth anything.’ That said, more than eight out of 10 respondents interviewed at court (85%) and 97% in prison said that having choice of solicitor was ‘fairly’ or ‘very important’.

The group looked at the overall health of the defence market and found that continued government inaction and increasingly unfeasible contract terms meant firms were choosing to quit legal aid and defence work. In April this year, Widnes firm Parry and Welch Solicitors gave formal notice to the Legal Aid Agency that they would not be accepting any more criminal legal aid cases because they considered such cases to be financially unsustainable. Transform Justice argue this could be the start of a legal aid exodus and draw attention to the ‘legal aid deserts’ that will result, particularly in more rural areas, if the current trend continues.

Quality of advice was another part of the ‘storm’ considered by the report. In particular, academic Dr Vicky Kemp reported that firms were increasingly sending accredited representatives rather than qualified lawyers to attend police station interviews raising concerns about the effect that lack of training has on quality. The research found lawyers and representatives were all too often ‘passive’ in interviews and that clients were routinely told to say nothing (‘no comment’) even though it might not be in their best interests. The report found that systemic barriers, including legal fees, training and police practice, were frustrating suspects’ access to quality advice.

Some suspects found themselves with no lawyer at all. According to the report, in practice only those charged with imprisonable offences who have a disposable household income below £22,325 receive access to free legal advice and advocacy in magistrates’ courts. Estimates suggested that around 30% of defendants are, as a result, left unrepresented.

The report highlighted how some were left with no choice but to represent themselves; however they did so in situations where they could get legal aid but were unaware of how the system works. It argued that there should be an expansion of free advice given to those charged in criminal matters and that the effect would probably be cost neutral, with savings being made in speedier court processes and in the avoidance of over-punitive sentences.

Transform Justice reported that many of the court processes that were initially introduced to increase efficiency – such as video hearings and warned lists – were in fact jeopardising defendant’s rights. Less time was available to gather together quality representation: for example, notices of first appearance often followed straight on from overnight detention.

The report concluded with recommendations on how best to battle the ‘perfect storm’. As well as better remuneration, it pointed to underlying problems such as poor complaints systems and feedback mechanisms, and the unrelenting pressure to get clients to plead early and speed through cases in the name of efficiency.